In Department of Homeland Security v. MacLean, No. 13-894 (January 21, 2015), the Supreme Court, in a 7 to 2 decision, sided with a former air marshal who worked for the Transportation Security Administrationin holding that the exemption from the Whistleblower Protection Act for disclosures “specifically prohibited by law” does not apply to disclosures prohibited solely by TSA regulations. The court also held that the Aviation and Transportation Security Act of 2001 did not prohibit Robert MacLean’s disclosure of lapses in post-9/11 aviation security to a reporter.
MacLean, a TSA air marshal, made disclosures regarding changes in the air marshal deployment patterns that in his view seriously jeopardized aviation security.MacLean was fired for disclosing “sensitive security information” in violation of TSA regulations.The MSPB agreed with the government that McLean did not qualify for protection under the Whistleblower Protecting Act because his disclosure was “specifically prohibited by law”– i.e. by TSA regulations.The U.S. Court of Appeals for the Federal Circuit disagreed, holding that agency regulations are not “law” for purposes of the whistleblower statute.
In his decision for the court, Chief Justice Roberts explained that the whistleblower statute repeatedly refers to “laws, rules, or regulations” and Congress’s choice to state “specifically prohibited by law,” rather than “specifically prohibited by law, rule, or regulation,” suggests that Congress meant to exclude rules and regulations from the whistleblower statute’s exemption.
The court found that the ATSA did not prohibit the disclosure at issue in this case but rather afforded discretion to the TSA in deciding whether to prohibit any particular disclosure.Justice Sotomayor, joined by Justice Kennedy, dissented on this issue stating that Congress’s clear intent was to prohibit such disclosures, especially where transportation security is at issue.Chief Justice Roberts concluded that the dissent’s concerns were legitimate, but that those concerns must be addressed by Congress or the President, not by the court.
* This information is provided by the attorneys at Passman & Kaplan, P.C.